When goods are imported into the Netherlands from outside the European Union, the importer has to pay import duties. This is done by means of a 'clearance', or; customs declaration. When customs accepts this customs declaration, the importer receives a ‘notification to pay' (hereinafter: UTB). If it turns out afterwards that the customs declaration was incorrect or incomplete, customs can reclaim under its current interpretation of customs legislation for a period of five years. In our view, this explanation has never been right.
Unintentionally made an inaccurate or incomplete customs declaration? The State Secretary also considers the extended post-clearance recovery period in that case undesirable
The customs authorities must notify the debtor of the amount of a customs debt they have established by means of a ‘’demand for payment’’ (hereinafter: UTB). The DWU does not impose an obligation on customs to notify the customs debt immediately after it has been determined. However, it does impose a 'final deadline' within which this notification must be made. This 'final deadline' or 'post-clearance period' is in principle three years after the customs debt is incurred. If the customs debt is not communicated within this time limit it will be extinguished.
The extended recovery periods
When a customs debt is incurred due to an act that is subject to criminal prosecution - for example, smuggling - the recovery period is longer. In the Netherlands, this extended period is five years. Salient detail: it does not matter who performed the act that is subject to criminal prosecution. In principle, the extended recovery period also applies when the importer himself has acted in good faith.
The criminally prosecutable act
An even more salient detail: an incorrect or incomplete customs declaration already qualifies as a criminally prosecutable act. Regardless of whether there was intent. According to the Court of Justice, an "act that can be criminally prosecuted" is an act that is punishable under the national criminal law of the relevant member state. It is sufficient that it has been established that an offence has been committed and that, as a result, import or export duties have not been recovered.
Under Article 10:5 of the General Customs Code, an incorrect or incomplete customs declaration qualifies as an act punishable under criminal law. It is not required that the act or omission was aimed at evading duties with (conditional) intent. This means that if you accidentally or perhaps deliberately and with justification use what Customs considers to be an incorrect commodity code, a five-year post-clearance period would already apply.
To summarize: if you import goods and file an incorrect or incomplete customs declaration in good faith, retroactive duties can be claimed for up to five years. Not only is this considered unreasonable and undesirable in practice, the State Secretary of Finance also considers this course of action no longer desirable.
Tax Plan 2024
Therefore, on February 22, 2023, the Secretary of State announced her intention to limit the application of the extended post-recovery period for cases where there is no intent. For those cases, the regular recovery period of three years will again apply. The State Secretary intends to make this measure part of the Tax Plan 2024. In that case, the amendment could already take effect on January 1, 2024.
Need advice?
Are you an importer or customs agent and are you facing an extended five-year post-clearance recovery period? Do you have any other customs law questions? Feel free to contact one of our attorneys such as John Wolfs or Lars Kroese.
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